By David G. Savage
March 29, 2015

A California school dispute that arose when students wore shirts emblazoned with the American flag on Cinco de Mayo could prompt the Supreme Court to take a new look at free-speech rules for high schools.

Ever since students protested the Vietnam War by wearing black armbands, the justices have said the 1st Amendment protects the rights of students to peacefully protest at school, so long as their actions do not lead to a “substantial disruption.”

In recent years, however, some school officials have moved to curtail political fashion statements such as wearing T-shirts with Confederate flags or anti-gay slogans. They have argued that some limits were necessary to avoid offending other students and possibly provoking violence.

On Friday, the justices met to decide on hearing a case asking whether a school official’s fear of violence justified disciplining students for wearing American flags on their shirts.

The appeal in Dariano vs. Morgan Hill Unified School District asks the justices to decide whether wearing an American flag can be curtailed as an unnecessary provocation, or instead is a right of every citizen protected by the 1st Amendment. A decision on whether they will accept the case could come as soon as Monday.

The legal battle began on May 5, 2010, at Live Oak High School south of San Jose, when several students wore shirts bearing the American flag on the Mexican holiday marking the May 5, 1862, defeat of French invaders.

Their protest came in response to an incident the year before when a group of Mexican American students unfurled a Mexican flag on the holiday and paraded around the campus, triggering tensions with white students who began chanting, “USA! USA!”

The school had seen at least 30 fights between white and Latino students, school officials said.

Upon seeing the white students wearing U.S. flags, Mexican American students called them racists and complained to Assistant Principal Miguel Rodriguez.

Fearing violence, the assistant principal told several of the white students wearing the American flag that they had to turn their shirts inside out or go home. They chose to leave.

The incident caused an uproar in the community, and Fox News channel picked up the story.

“This is heartbreaking to the students and parents who see the flag as a symbol of national unity,” said Los Angeles lawyer William Becker, who sued on behalf of several parents. “It rewards those who believe the flag is a symbol of hostility toward minorities. If they think there is a problem, then don’t hold a Cinco de Mayo celebration.”

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